More Protection Urged For Ill Elderly

ATLANTA -- Elderly people who are ill or mentally impaired often are placed in nursing homes without anyone representing their wishes, says an expert on legal issues involving aging.

This is particularly true in cases where the patient`s husband or wife is healthy, because there is then no need for a court to appoint a guardian, Peter J. Strauss, a New York lawyer and a founding member of the National Academy of Elder Law Attorneys, said on Wednesday.

He spoke at a symposium on elder law at Emory Law School in Atlanta.

Strauss said an adversarial system, in which someone is appointed to fight for the patient`s wishes, may be the best way to avoid such abuse of patients` rights. A counseling and mediation system can also work, he said, but such programs are rare.

As it is, the healthy spouse often has control of the family money and can arrange the nursing home placement, Strauss said.

``Unless the impaired patient is vocal or difficult enough to cause the nursing home or other residents harm, it will certainly not be the facility that will decline the admission because the rights and wishes of the patient may have been violated,`` Strauss said.

To illustrate his point, Strauss discussed the case of Charles, a ``middle level Alzheimer`s victim`` who lived in a one-bedroom apartment with his wife, Betty.

A home health aide attended Charles 12 hours a day, but Betty could no longer cope with Charles` behavior in the cramped quarters. She decided to have her husband admitted to a nursing home against his wishes.

``Who speaks for Charles?`` Strauss asked.

He said he was not arguing that any particular decision was right or wrong. ``The issue that most concerns me is that in these situations -- the pre- guardianship cases -- there is no person who clearly speaks for the impaired person.``

The situation can be exacerbated when the impaired person is in a hospital, and the hospital discharge planner is pressured by insurance regulations to try to limit the hospital and place the patient elsewhere, Strauss said.

The problem extends even to guardianship hearings in many states, Strauss said. In most cases, the attorney appointed by the court to represent the impaired person is charged with advising the court as to what appears to be in the ``best interests`` of that person, rather than to advocate for that person`s wishes, he said.

``The impaired client`s needs are best served through some form of adversarial process,`` Strauss contended.

But Sidney Watson, an associate professor of law at Mercer University in Macon, disagreed.

``My problem is this idea of competing rights,`` she said. ``None of us is alone -- we only exist in our relationships. An adversarial proceeding doesn`t help these relationships. The role of the professional is to represent the (entire) family.``

Strauss replied that he supported mediation, and he supported decisions being made within the family. But he said someone must speak for the patient or mediation would be meaningless.

``Unless there`s a person who speaks for the disabled patient, none of it works, whether we`re in a courtroom or in a lawyers`s office,`` he said.

Many of these problems could be avoided altogether, he said, if there were funds to provide adequate in-home services and alternatives to nursing homes.

Currently, 1.1 million people live in nursing homes in the United States -- almost 4 percent of all Americans over the age of 65. Strauss said six out of 10 nursing home patients suffer from some form of dementia.